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EPA Publishes Proposed Changes to the Endangered Species Act
(from January 27, 2003)

In the Federal Register notice published Friday January 24, 2002 (68FR3785-3795), EPA outlines proposed changes to the Endangered Species Act (ESA). The intent of the proposed rulemaking is to "simplify" the consultation process used to evaluate the effect that an action on pesticides (a registration, new use, new formulation, etc.) has on endangered species.

According to the EPA web site, "The notice seeks comments on ways that the consultation process can be made more effective and efficient with respect to pesticide registration actions that may have effects on listed threatened or endangered species."

According to environmentalists, this action could dramatically weaken endangered species protection from dangerous pesticides. Environmentalists call interested parties to comment on this notice so that EPA knows that weakening ESA is unacceptable. The intent of this rulemaking, as stated in the Federal Register, is to bring in line the intent of ESA (to protect species) with the intent of the Federal Insecticide Fungicide Rodenticide Act (FIFRA). It was been widely recognized that the underlying standards of safety in the two statutes are dramatically distinct, with ESA establishing a no risk/no harm standard and FIFRA creating a controversial acceptable risk threshold. A purpose of FIFRA, as stated in 7 USC Section 136a. Accompanying Notes (also mentioned in the Federal Register Notice), is to, "minimize the impacts [of regulation] to persons engaged in agricultural food and fiber commodity production and other affected pesticide users and applicators."

A brief overview of some of the sections of ESA that will be most affected was prepared by Mike Sentatore of Defenders of Wildlife and is outlined below. The most affected section of ESA is Section 7.

Section 7 is one of the bedrock provisions of the ESA and requires that all federal agencies consult with either the U.S. Fish and Wildlife Service or National Marine Fisheries Service (collectively the "Services") to ensure that any action they undertake is not likely to jeopardize the continued existence of any endangered or threatened species. The most important changes affect this "consultation process."

Under the proposal, EPA will unilaterally decide whether use or registration of a pesticide is likely to adversely affect listed species and therefore, whether a section 7 consultation is required. According to environmentalists, this proposed change would create a huge loophole in which EPA could eliminate any Services' review of registration and use of pesticides with the potential to impact listed species. Moreover, this would establish a precedent for other federal agencies to request similar regulatory authority under the ESA.

A second change will require the Services to defer to EPA in evaluating the effects of pesticide on listed species. Therefore, if the Services find an effect of a pesticide on a species and EPA does not, the EPA opinion would overrule that of the Services. Again, this creates a precedent for other agencies to follow to circumvent the authority of the Services charged by law to enforce ESA. Environmentalists says several of the changes under consideration would significantly weaken existing protections for endangered and threatened species at risk from pesticides and are entirely inconsistent with regulations that have been in place protecting our nation's most imperiled wildlife for more than 15 years.

There have been a number of pesticide lawsuits resulting in EPA pesticide program agreements to enforce the ESA. In Californians for Alternatives to Toxics, Environmental Protection Information Center and Humboldt Watershed Council v. EPA, settled on April 19, 2002, EPA agreed to consult with two other federal agencies, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, on specific uses of eighteen pesticides in California, including how the pesticides are used in forestry, on various fruit, nut, nursery and forage crops, highway and utility rights-of-way and irrigation canals. In Northwest Coalition for Alternatives to Pesticides, Washington Toxics Coalition, Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources v. EPA, settled in July 2002, Judge John Coughenour, U.S. Federal District Court in Seattle, found the EPA has a legal obligation under ESA to review the impacts of pesticide use and curtail uses that are harmful to salmon. Another case is still pending, Defenders of Wildlife, American Bird Conservancy, and Florida Wildlife Federation v. EPA, filed in Federal District Court in October 2002 on the pesticide fenthion.

The full Federal Register Notice is available online.

Comments on these proposed changes to the Endangered Species Act can be emailed to opp-docket@epa.gov, Attention: Docket ID Number OPP-2003-0010

or by mail to:

Public Information and Records Integrity Branch (PIRIB)
Office of Pesticide Programs (OPP)
Environmental Protection Agency (7502C)
1200 Pennsylvania Ave., NW.
Washington, DC 20460-0001
Attention: Docket ID Number OPP-2003-0010

All comments on these proposed changes (docket ID number OPP-2003-0010) are due before March 10, 2003.